Inadequacies of the Definitions of Sexual Offences in the Criminal Offences Act

While the Criminal Offences Act, 1960 (Act 29) outlines a number of criminal offences and prescribes punishments for offenders, a number of the crimes outlined in Act 29 have some intrinsic inadequacies. The gaps in their definitions present a challenge for successful prosecution of such crimes. Chapter six of the Criminal Offences Act, 1960 (Act 29) outlines nine sexual offences. They are: rape, defilement of a child under sixteen years of age, carnal knowledge, indecent assault, and unnatural carnal knowledge, and incest, household permitting defilement of a child, procuration and seduction or prostitution of a child under 16 years.

This
article will discuss the gaps in some of the sexual offences as provided for in
Act 29 and make recommendations for policy makers to consider.

Rape

According to section 98 of Act 29, rape
is having carnal knowledge of a female of not less than sixteen years without
her consent. This implies that as long as a person is sixteen years or above,
you can have sexual intercourse with her by her express or implied consent.
With the advent of the Criminal Code Amendment (Act 554), the offence of rape
is now a first degree felony carrying a sentence of not less than five years
and not more than twenty-five years (Section 97).

In Ghana, the offence of rape is gender
specific. Thus, a man cannot be raped, not even by his fellow man. In
situations like these, it is considered as unnatural carnal knowledge and it
carries the same sentence as rape. Most importantly, in Ghana, a woman cannot
be the perpetrator of rape. Under no circumstance will it be held that a woman
has raped a man.

In the case of Banousin v Republic (2015)[1],
the Supreme Court highlighted the essential ingredients of rape, thus:

the victim
has been carnally known;

it was the
accused person who had carnal knowledge with the victim;

the victim
did not give her consent to be carnally known by the accused person, and

the victim
was a woman and at the time she was carnally known by the accused person, she
was aged sixteen years or more.

While
these essential elements must be proven beyond reasonable doubts, however, the
court has held in the case of Hanson
v The Republic (1978)[2]
that, if the prosecution fails to adduce evidence of the victim’s sexual
intercourse with a man by means of the penis penetrating into the vagina, but
by any other means such as fingers, tongue or stick, the action will fail.

Be
that as it may, the court also held in the case of Agbemenya v The State (1964)[3]
that the absence of consent, empowered under sections 14 and 42(g) of Act 29,
is an essential proof of rape, i.e., the prosecution is required to prove the
lack of consent or express withdrawal of consent even if it was granted for the
cause of action to succeed.

Flowing from the above, what is yet to be resolved is the issue of gender neutrality in the offence of rape. It is arguable from the position of the law that the definition of rape does not objectively reflect the situation on the ground.

A 2011-2016 data gathered by the Domestic Violence and Victim Support Unit (DOVVSU) of the Ghana Police Service shows that more female continued to suffer from rape and assault with only a handful of the victims being males. Out of 1,862 reported cases of rape, there were only 6 males. The disproportionate number may be informed by several factors. However, to draft the law on rape to suggest that only females can be victims of non-consensual intercourse is outdated.

In
some common law jurisdictions, the definition of rape has been amended by the
substitution of “female” by “person” to render the offence gender neutral; and
this should apply in the Ghanaian jurisdiction. In Kenya for instance, section 3 of the Sexual Offences Act, No.
3 of 2006, provides for the offence of rape, thus:

A person commits the offence of rape if:

he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organ;

the other person does not consent to the penetration; or

the consent is obtained by force or by means of threat or intimidation or any kind.

In
my view, this law is gender neutral, containing all the elements required for a
successful prosecution of a rapist (whether male or female) and it is an
objective reflection of the situation on the ground.

Unnatural Carnal Knowledge

Under
section 104(2) of Act 29, unnatural carnal knowledge is defined as sexual
intercourse with a person in an unnatural manner or, with an animal. In this
context, the absence of the meaning of having sex with a person in an
“unnatural manner” leaves room for judicial interpretation of the offence. In the
case of Banousin v The Republic[4],
Dotse JSC interpreted carnal knowledge as:

“It
is the female sex organs called the vulva and the vagina that are normally
penetrated into during sexual act which can qualify to be carnal knowledge
under section 98 and 99 of Act 29.”

Perhaps,
the fundamental question that comes to mind is: when is carnal knowledge
unnatural? In view of the above, penetration of any part of the body apart from
the vagina is unnatural carnal knowledge, i.e., oral sex and anal sex are
unnatural carnal knowledge. And unlike rape, with unnatural carnal knowledge,
the law was drafted in a language which renders it gender neutral, with both a
man and a woman capable of being victims.

But
then again, what is the scope of the definition in respect of gay, lesbianism
or transgender? Would carnal knowledge be in an “unnatural manner”? In the English
case of Corbett v Corbett[5]
Omrod J held that a person’s sexuality is fixated at birth. Subsequently, the
court held that the marriage was void ab initio, because, marriage between a
man and a woman is defined according to the natural sex of the couple rather
than gender – which could change. From this case, it would appear that the
English court’s decision affirms the Ghanaian law on what constitutes an
offence of unnatural carnal knowledge based on judicial interpretation of the
offence.

Nevertheless,
my considered opinion is that, the offence of unnatural carnal knowledge
provided for in the Act 29 is broad and indefinite leaving room for judicial
interpretation of the offence.

Defilement

Defilement
is defined in section 101(2) of Act 29 as natural or unnatural carnal knowledge
of a child under sixteen years of age with or without the child’s consent. Unlike
rape, according to section 14(a) of Act 29 consent for carnal knowledge of a
child under sixteen years is void – with punishment of not less than seven
years and not more than twenty five years in prison. In the case of The Republic v Yeboah (1968), the
court stated the relevant ingredients of the offence of defilement which are as
follows:

that the
victim is under the age of 16 years (as provided for in Act 554).

someone
had sexual intercourse with her; and

that person is the accused.

That notwithstanding, there
seems to be a presumption that an offence of defilement is not gender specific.
In my view, this presumption is erroneous and does not fly in the face of the
law. Thus, carnal knowledge has been held to mean penetration of the penis into
the vagina, and unnatural carnal knowledge to also mean the penetration of any
part of the body apart from the vagina. In this regard, it somewhat seem to
suggest that a child (boy) could not be a victim when he is defiled by a
female, because, there must be carnal knowledge (penetration) and the act must
be done by the him. And since consent is inconsequential, a female would not be
liable for defiling a child – from the ingredients provided for the offence.

For that matter, this offence,
similar to rape, provided in the Act does not objectively reflect the situation
on the ground and it is an encumbrance to social justice which should be giving
the needed social attention.

Recommendations

Having
regard to the submissions above, it would be appropriate to suggest that there
is the need for further amendment of the Criminal Offences Act, 1960 (Act 29) as
amended by the Criminal Code Amendment Act 1998 (Act 554). And these are
proposed elements in consideration of the amendment of the offences of unnatural
carnal knowledge and defilements:

A person (A) commits an
offence of unnatural carnal knowledge if –

he intentionally or
unlawfully penetrates a person (B) of any part of the body apart from natural
sex organ of the (B), OR

he intentional or unlawfully
penetrates the natural sex organ of (B) without his natural sex organ